Boakye-Yiadom and Others v Akuoku (PA/785/2018) [2024] GHAHC 524 (30 October 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE PROBATE AND ADMINISTRATION DIVISION I HELD IN ACCRA ON WEDNESDAY THE 30TH DAY OF OCTOBER 2024 BEFORE HER LADYSHIP EUDORA CHRISTINA DADSON, JUSTICE OF THE HIGH COURT --------------------------------------------------------------------------------------------------------------------- SUIT NO. PA/785/2018 EUNICE TAKYIWAA BOAKYE-YIADOM & ORS. - PLAINTIFF VS KWABENA AKUOKU - DEFENDANT --------------------------------------------------------------------------------------------------------------------- PARTIES: PLAINTIFFS PRESENT 1ST DEFENDANT ABSENT 2ND DEFENDANT REPRESENTED BY MATILA ODURO MENSAH COUNSEL: YAW OPOKU AGYEMANG WITH GODFRED GYIMAH OKYERE HOLDING BRIEF FOR YAW ACHAMPONG BOAFO FOR THE PLAINTIFFS PRESENT WILLIAM OFEI BOTCHWAY HOLDING BRIEF FOR K. ADJEI LARTEY FOR THE DEFENDANT/APPLICANT =================================================================== [1] Background Under section 80 of Administration of Estates Act, Act 63, administration is said to be made pendente lite, that is, pending suit, where the court makes a grant while there are SUIT NO:PA/785/2018 – EUNICE TAKYIWAA BOAKYE-YIADOM & 3 ORS VS KWABENA AKUOKO & 1 OR – RULING Page 1 of 9 pending legal proceedings touching on the validity of a Will or for obtaining, recalling or revoking any grant of administration. The parties may agree on the person to be appointed administrator pendente lite otherwise the court may appoint an administrator of the property of the deceased person and the administrator so appointed shall have all the rights and powers of a general administrator other than the right of distributing the residue of the property and every such administrator shall be subject to the immediate control and direction of the court, and the court may direct that such administrator shall receive out of the property of the deceased such reasonable remuneration as the court may deem proper1. The learned author2 of the book WILLIAMS & MOTIMER Executors, Administrators and Probate, 15th Edition, page 296 stated as follows: “Where a probate action has begun, but not before,3 application may be made to the court to grant administration limited to the continuance of litigation. The object of such a grant is to ensure that the estate of the deceased is managed and preserved for the benefit of those found to be entitled thereto…usually the application is made by one of the parties, but the court may appoint an administrator pendente lite on the application of any person interested in the estate.” [2] The Applicant’s case The Applicant on 16th August 2024 filed a motion for the appointment of an administrator pendente lite. It is the case of the Applicant that he is one of the children of the deceased and a beneficiary of the estate of the late Nana Boakye. The crux of the application can be found in paragraphs 5 to 17 of the affidavit in support. The Applicant is praying for the order because an unknown person has placed a “for sale” sign on one of the houses 1 Derick Adu-Gyamfi, Handbook on Probate & Administration Practice in Ghana (with Precedents), page 164. See also Tristram and Coote’s Probate Practice, 23rd Edition, page 371. 2 J.H. G. Sunnucks 3 Salter v Salter [1896] P 291 SUIT NO:PA/785/2018 – EUNICE TAKYIWAA BOAKYE-YIADOM & 3 ORS VS KWABENA AKUOKO & 1 OR – RULING Page 2 of 9 located at Mataheko belonging to the estate of the deceased without the proper authorisation. Again an ongoing dispute involving a property located at Airport, Accra involving Nana Boakye Yiadom and Devtraco has stalled following the death of the deceased. The Applicant states “That the appointment of an Administrator pendente lite is necessary to manage the Estate, preserve the assets and prevent further unauthorised actions by individuals.” The Applicant therefore wants the cost of the present application which he assesses at GHC40,000 to be borne out of the estate. [3] The Plaintiff/Respondent case The 2nd Plaintiff/Respondent opposed to the present application filed a 14-paragraph affidavit in opposition. The 2nd Respondent states that since the institution of the action against the Defendants, there has not been any act of intermeddling with the Estate of the late Nana Boakye Yiadom to raise concerns about the proper management of the estate. The 2nd Plaintiff/Respondent deposed as follows: “That the property in question with a “For Sale” sign placed on in South Odorkor is my personal property and not part of the estate of the late Nana Boakye Yiadom. Paragraphs 8 to 11 explains the Respondent mode of acquisition of the property at South Odorkor.” [4] Court’s Analysis and Opinion I would therefore examine the statute that the present application is anchored under. Section 80 of the Administration of Estate Act, 1961, Act 63 provides as follows: “Administration Pendente Lite. SUIT NO:PA/785/2018 – EUNICE TAKYIWAA BOAKYE-YIADOM & 3 ORS VS KWABENA AKUOKO & 1 OR – RULING Page 3 of 9 (1) Where any legal proceedings touching the validity of the will of a deceased person, or for obtaining, recalling or revoking any grant, are pending, the court may grant administration of the estate of the deceased to an administrator, who shall have all the rights and powers of a general administrator, other than the right of distributing the residue of the estate, and the administrator shall be subject to the immediate control of the court and act under its direction. The court may, out of the estate of the deceased, assign to an administrator appointed under this section such reasonable remuneration as the court thinks fit.” Order 66 rule 58 of CI 47 provides as follows: “58. Administration pendente lite (1) After a probate action has been commenced, an application may be made to the Court to grant administration pendente lite in accordance with section 80 of the Administration of Estates Act, 1961 (Act 63). (2) An application under subrule (1) may be made by one of the parties to the suit or by any person interested in the estate. (3) The parties may agree on the person to be appointed administrator pendente lite, otherwise the Court shall appoint such persons as it considers fit. (4) If a person to be appointed as administrator pendente lite is connected with the suit the consent of the parties to the suit shall be sought unless the Court decides otherwise. (5) A person appointed administrator pendente lite shall submit accounts as in Forms 44 and 45 in the Schedule to the Court for them to be passed at such intervals as the Court may direct, but shall in any case submit an account at the end of each year of administration and upon being discharged. SUIT NO:PA/785/2018 – EUNICE TAKYIWAA BOAKYE-YIADOM & 3 ORS VS KWABENA AKUOKO & 1 OR – RULING Page 4 of 9 (6) The account to be submitted under subrule (5) shall consist of an inventory of assets in the hands of the administrator pendente lite and a cash account and shall be verified by affidavit and lodged in the registry of the Court. (7) An appointment shall be made for the purpose of passing the accounts. (8) An administrator pendente lite shall give security in such sum and in such manner as the Court shall direct. (9) An administrator pendente lite shall be entitled to such reasonable remuneration as the Court thinks fit and such remuneration shall be paid out of the estate or the income of the estate and shall be fixed on the taking of accounts. (10) The Court in fixing remuneration under subrule (9) shall take into account the duration and complexity of the administration, the professional skill, business knowledge or other qualification of the administrator pendente lite and the total work done by the administrator pendente lite. (11) The remuneration and charges of an administrator pendente lite and the costs of applying for the appointment of the administrator pendente lite may be paid out of the estate or by the party ordered by the Court to pay the costs of the action.” An Administrator Pendente lite shall be entitled to such reasonable remuneration as the court thinks fit and such remuneration shall be paid out of the estate or the income of the estate and shall be fixed on taking of accounts. The Court in fixing the remuneration shall take into account the duration and complexity of the administration, the professional skill, business, knowledge or other qualification of the administrator pendente lite and the total work done by the administrator pendente lite. Administrator pendente lite is an officer of the court and not the mere nominee or agent of the parties at whose instance he was appointed. But he is amenable to proceedings in equity and is bound to account. SUIT NO:PA/785/2018 – EUNICE TAKYIWAA BOAKYE-YIADOM & 3 ORS VS KWABENA AKUOKO & 1 OR – RULING Page 5 of 9 But before making a grant pendente lite the Court must be satisfied as to the necessity of such an administrator. Thus the court will not appoint an administrator pendente lite where there is a person named in the Will as executor, whose appointment is not questioned, and who can discharge the duties of such an administrator. The court will appoint such an administrator if it is just and proper so to do4. In the case of Wright v Rogers L.R 2 P& D 179 a suit had been instituted to try the validity of the Will of the deceased, and, judgment having been given to establish it, the court directed probate to be delivered out to the executors therein named. One of the parties appealed to the House of Lords, a difficulty having arisen in the Court of Chancery as to the power of the executors to give a good title to certain leaseholds forming part of the deceased’s estate, the Court ordered probate to be brought into the Registry, and there upon Letters of Administration Pendente Lite to granted to the executors. From the literature there are some conditions which must be fulfilled for the successful consideration of an application for the appointment of Administrator Pendente Lite. i. That there is a pending probate action or a probate action has commenced. ii. The application may be made by one of the parties or on application of a person interested in the estate. iii. That it is expedient to make the grant. Expanding on the principle that ‘there must be a pending probate action’ the Court in the case of Re Torto (Decd); Administrator-General v Torto [1973] GLR 419 held that “To found jurisdiction under Section 80(1) of Act 63 there must be an action actually pending in court. Proceedings within Section 8 0(1) of Act 63 meant proceedings leading to the grant and not where the grant had already been made. In the present case, there was no lis pendens in the 4 Derick Adu-Gyamfi, Handbook on Probate & Administration Practice in Ghana (with Precedents), page 167 SUIT NO:PA/785/2018 – EUNICE TAKYIWAA BOAKYE-YIADOM & 3 ORS VS KWABENA AKUOKO & 1 OR – RULING Page 6 of 9 High Court when the Administrator-General was appointed as administrator pendente lite of the estate of the deceased. Proceedings could not be said to be pending when the appointment was made because at that stage the court was functus officio since the lis had already been determined. Even if an appeal were pending the application for the appointment of the administrator pendente lite should have been made to the Court of Appeal. The purported order appointing the Administrator- General was therefore wrong being made without jurisdiction and was null and void”. I have considered the Applicants’ application and affidavit in support, supplementary affidavits and the annexures. I have also considered the affidavit in opposition filed by the Respondent and the annexures. I have also had the benefit of the submissions by Counsel both in support and in opposition to the present application. What is the proceeding pending before this Court to necessitate the appointment of an administrator pendente lite? An examination of the proceedings in this Court will elicit the required answers. The Plaintiffs/Applicants issued a writ of summons and statement of claim for the following reliefs: a. “A declaration that the Last Will and Testament of Nana Boakye-Yiadom is invalid and it has no legal effect and should be set aside. b. Further a declaration that the deceased Nana Boakye-Yiadom died intestate. c. An order that the Estate of Nana Boakye-Yiadom be distributed according to PNDC Law 111 d. An injunction to restrain the Defendants beneficiaries and their assigns, agents and servants from interfering in any way whatsoever unto the properties named in the Will”. The first two conditions have been fulfilled by the Applicant. But before making a grant pendente lite this Court must be satisfied as to the necessity of such an administrator. Has that necessity been made out? SUIT NO:PA/785/2018 – EUNICE TAKYIWAA BOAKYE-YIADOM & 3 ORS VS KWABENA AKUOKO & 1 OR – RULING Page 7 of 9 The parties are in court because as the Plaintiffs assert that the Will of the deceased is invalid. The basis of the present application is to prevent dissipation of the estate of the deceased. The Respondent canvassed strongly that there is no intermeddling of the estate and a property with the for sale sign on it belongs to him. No names were proffered for consideration as Administrator pendente lite. It is not likely this service would be a service which would be rendered for free. In the considered view of this Court the parties should learn to put aside their differences and manage the estate for the benefit of the beneficiaries. Under the circumstances the application filed on 16th August 2024 is granted in part in the following terms and I make the following orders: 1. I appoint the 1st Plaintiff and 1st Defendant as Administrators Pendente lite only in respect of ensuring that the litigation involving the estate - Suit No: CM/BDC/0638/2016 is dealt with expeditiously. This appointment terminates automatically on the day judgment is delivered in this matter or pending the final determination of this suit. 2. The Administrator pendente lite shall submit accounts as in Forms 44 and 45 in the Schedule to the Court for them to be passed at such intervals as the Court may direct, but shall in any case submit an account at the end of each year of administration and upon being discharged. The Court reiterates that an early and expeditious conclusion of the trial of the case would serve the interest of the estate of the deceased testator and ends of justice. No order as to costs. (SGD.) SUIT NO:PA/785/2018 – EUNICE TAKYIWAA BOAKYE-YIADOM & 3 ORS VS KWABENA AKUOKO & 1 OR – RULING Page 8 of 9 EUDORA CHRISTINA DADSON J (JUSTICE OF THE HIGH COURT) SUIT NO:PA/785/2018 – EUNICE TAKYIWAA BOAKYE-YIADOM & 3 ORS VS KWABENA AKUOKO & 1 OR – RULING Page 9 of 9